La Bonne Foi Dans L’Article 8 Lcd: Un Remède À L’Impuissance Des Consommateurs Face Aux Clauses Générales ‘Soi-Disant’ Négociées? (Good Faith in Article 8 of the Swiss Federal Act on Unfair Competition: A Remedy to Help Defenseless Consumers Facing 'Seemingly' Negotiated Standard Terms?)
Aktuelle juristische Praxis - Pratique Juridique Actuelle, Vol. 21, No. 10, 2012
19 Pages Posted: 10 Jun 2013 Last revised: 28 Jan 2016
Date Written: June 9, 2013
According to article 3 of the Council Directive 93/13/EEC on unfair terms in consumer contracts, “a contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations arising under the contract, to the detriment of the consumer”. This rule, which was adopted by the member states as well as the Swiss legislator (article 8 of the Swiss Federal Law on Unfair Competition), raises some fundamental questions: What are the criteria to define a significant imbalance? What role should good faith play in the assessment of the imbalance? Should a term always be regarded as contrary to the requirement of good faith when it causes a significant imbalance? This article sets out to examine such questions in light of the recent decisions of the European Court of Justice. Besides, special attention has been paid to decisions of the Swiss Federal Supreme Court which are compared to decisions concerning similar cases taken in other European jurisdictions.
Note: Downloadable document is in French.
Keywords: contracts, unfair standard terms, unconscionnability, good faith, comparative consumer law, conditions générales, bonne foi, clause insolite
JEL Classification: K12
Suggested Citation: Suggested Citation